人格权法上同意撤回权的规范表达  

Normative Expression of Withdrawal of Consent in the Rules of Personality Rights

作　　者：刘召成 Liu Zhaocheng

机构地区：[1]天津大学法学院

出　　处：《法学》2022年第3期82-96,共15页Law Science

摘　　要：同意撤回权是同意人所具有的撤回曾经作出的授权他人介入其人格领域的同意的权利,在本质上为撤回权而非撤销权。同意在生效后亦可撤回的规则设计,是法律为了履行保护人格尊严之基本权利免受权利人自己侵害的义务,确保同意人对其人格作出真正自由和自愿的自我决定,而为同意人提供的纠正或免除不再与其真意相符的人格自我拘束的方法。在同意被撤回后,相对人丧失的是基于同意人意愿所拥有的介入同意人人格领域的权限,基于法定事由所获得的介入权限则不受影响。根据同意所针对的是纯粹的人格领域还是与财产相关的人格领域的不同,同意撤回权可分为任意撤回权和基于重大事由的撤回权两种。撤回权人既可撤回部分同意,亦可撤回全部同意,但不可放弃撤回权。在以合同关系为基础的同意中,撤回权人在撤回同意后应赔偿相对人的信赖利益损害。The right of consent withdrawal is the right of a person to withdraw his or her consent given to authorize others to intervene in the field of his or her personality,which essentially is the right of withdrawal rather than the right of revocation.The rule that consent can be withdrawn after its entry into force is designed as a way for the person to rectify or remove the self-restriction upon his or her personality that no longer corresponds to his or her true intentions,in order to fulfill the law’s obligation to protect the fundamental right to human dignity from infringement by the right holder himself,and to ensure that the person has a truly free and voluntary self-determination of his or her personality.When the consent is withdrawn,the counterparty loses the authority to intervene in the field of the subject’s personality based on the will of the subject,but the right to intervene based on legal causes is not affected.The right of consent withdrawal can be divided into two types:the right of free withdrawal and the right of withdrawal based on major causes,depending on whether the consent is directed to the purely personality or to the personality related to property.It can be withdrawn either in part or in full,but the right of withdrawal cannot be waived.In the case of consent based on a contractual relationship,the person who withdraws his or her consent shall compensate the counterparty for the damage to reliance interests.

关 键 词：同意 撤回权 人格自我决定 利益衡量 信赖利益损害 

分 类 号：D923[政治法律—民商法学] D922.16[政治法律—法学]